By

Hannah Chapple

A rising tide lifts all boats. Women of Color in lower-paying jobs are the most likely group to experience sexual assault, abuse, and harassment in the workplace.¹ When making laws that impact all, Congress should focus on the most vulnerable to these egregious workplace actions to better serve all workers.
At the outset of its passage, problematic interpretations are left open by the language of the Ending Forced Arbitration for Sexual Assault and Sexual Harassment Claims Act of 2022 (“EFAA”). The Act, a significant amendment to the Federal Arbitration Act, has been hailed as “a milestone in the #MeToo movement.”²
Under the EFAA, employers must carve out sexual harassment and sexual assault disputes from their mandatory arbitration programs.³ Currently, the statute gives employees the option of either pursuing sexual harassment and sexual assault claims through arbitration or in federal, state, or tribal courts.⁴ However, when a plaintiff has subsequent discrimination claims, their right to choose the forum for their sexual harassment and assault claim is virtually invalidated. By leaving open the question of what impact the EFAA has over other employment discrimination claims brought in conjunction to a sexual harassment or sexual assault claim, this statute detrimentally impacts the very people that it was enacted to protect.
Sexual desire does not drive all sexual harassment; on the contrary, it may be an expression of control and power.⁵ These experiences in the workplace are typically accompanied by race and gender discrimination. ⁶ The EFFA does not explicitly cover these related claims when brought alongside sexual harassment/assault claims. This drafting decision stands inapposite to the reality that harassment intersects race and sex to invade one’s ‘gendered racial identity.’
Congress must amend the EFAA to explicitly encompass other subsequently brought discrimination claims. Such an amendment is necessary because both sexual harassment and subsequent discrimination claims flow from the abuser’s compulsion to exert power. This same parentage inextricably binds these related discrimination claims together. By leaving the acceptable level of attenuation from the original sexual harassment/assault claim ambiguous, the EFAA all but invites judicial interpretations which contravene its express legislative intent.
In Johnson v. Everyrealm, Inc., a district court interpreted the EFAA to require invalidation of the arbitration clause as to the entire “case” relating to the sexual harassment dispute.⁷ The plaintiff’s claims of sexual harassment, pay, race, gender and ethnicity discrimination, retaliation, and other tort claims were thus not subjected to arbitration.⁸ This view is too broad. It contravenes the amendment’s legislative intent — not to handicap the FAA entirely.⁹ By taking the broad view that the entire “case” is not subject to an arbitration agreement, the plaintiff’s unrelated claims, for example – a final paycheck claim, would not be subject to arbitration, chilling the entire FAA. This broad interpretation may inspire bad-faith plaintiffs to bring forth sexual harassment or assault claims in an effort to escape their arbitration agreements.¹⁰ Despite the fact that false claims are very unlikely, this broad interpretation, if adopted, may be abused, diminishing public perceptions of alleged survivors. Such a result would be catastrophic to the ongoing push to end sexual harassment and sexual assault, and would impact the credibly of arbitration proceedings.
On the other side, where the court only carves out the sexual harassment claim,¹¹ plaintiffs are forced to either forego their right to a judicial forum, or they are forced to pursue their power disparity-based claims in multiple forums at once. This narrow interpretation also further disenfranchises the very people that this act seeks to protect and chills the effect of the EFAA.
The EFAA, narrowly interpreted, creates issues if plaintiff’s hope to pursue their sexual harassment or assault claim in a judicial forum, but must bring subsequent claims to arbitration, and these issues would reasonably deter a plaintiff from doing so, eliminating the EFAA’s purpose to give the plaintiffs a choice. When plaintiffs attempt to pursue claims in two forums, they may run into res judicata issues as the arbitration is likely to end before the judicial forum. ¹² Proceeding in two forums may also invite inconsistent results as power imbalances in one forum may not be considered the same way as in the next. Further, by proceeding in two forums, plaintiffs may have to relieve unsettling and traumatic experiences multiple times.
The issues that arise when operating in two forums would deter a reasonable plaintiff from taking their sexual harassment or assault claim to court; effectively mooting the entire EFAA which was intended to allow plaintiffs to choose forum.
The open interpretations of the EFAA disenfranchise victims and pervert the act into a statutory extension of the abusive relationship it was codified to stop. Accordingly, Congress must amend the EFAA to cover subsequent claims of discrimination and other causes of action rooted in discrepancies of power.